The Chilling Effect of Expecting CIA Agents to Obey the Law

The New York Times says Attorney General Eric Holder's decision to reopen cases involving alleged CIA abuse of prisoners in Iraq and Afghanistan—a decision that reportedly prompted "a profanity-laced screaming match" last month in which CIA Director Leon Panetta threatened to resign—"is politically awkward…because President Obama has said that he would rather move forward than get bogged down in the issue at the expense of his own agenda." Obama's pre-emptive wish to move forward and not look back always seemed ill-advised to me, given the implication that even egregious violations of the law would be overlooked to avoid the appearance of partisan vindictiveness and/or the risk of undermining morale at the CIA. According to the Times, at least some of the cases Holder is re-examining involve clear violations of the federal ban on torture (which applies to Americans outside as well as inside the United States). "In examples that have just come to light," it says, "the C.I.A. [inspector general's] report describes how C.I.A. officers carried out mock executions and threatened at least one prisoner with a gun and a power drill." Under federal law, torture includes "severe mental pain or suffering" caused by "the threat of imminent death." If investigating CIA agents for violating this law has an unacceptable "chilling" effect on their ability to do their jobs, as former CIA General Counsel Jeffrey Smith suggests in today's Washington Post, so does the law itself.